The Clock Is Ticking

Last week a consortium of civil rights activists sent a sharply worded letter to Governor Cuomo urging him to call special elections to fill twelve state legislative seats. In it, they referred to a variety of previous public statements in support, including from Speaker Sheldon Silver, the New York City Council and my op-ed in the Daily News. The issue is not complicated:  approximately 1.8 million New Yorkers are without either an Assembly member or state Senator; about 40,000 residents in the heart of Brooklyn have neither. An effect of these vacancies was felt when the DREAM Act failed to pass the state Senate on account of insufficient votes. Filling the vacancies could change that result in a re-vote.

The Governor, as recently as a few weeks ago, said he was still “reviewing” the issue.  His stated reluctance stems from the cost of special elections, but the courts have routinely opined that the fundamental right to vote outweighs administrative factors.

He has also linked special elections to corruption. Indeed, a few days after my piece ran in the Daily News, its editorial board backed up the governor’s rationale for not holding special elections. But of the 64 special elections for state legislative seats during the last eight election cycles, only four were prompted by corruption-related vacancies. Although any corruption is, of course, wholly unacceptable, to impose an outright ban on special elections for this reason is ill-advised.  

Voters in the affected areas are presently contemplating a lawsuit on a variety of grounds.  While it is true that the governor has statutory discretion to call a special election, under the facts and circumstances of the current situation, there could be a legal claim that his inaction is an unconstitutional abuse of that discretion. 1.8 million people, many of whom are African-American, Latino and Asian, lack full representation in Albany as the legislature votes on the budget and other important policy matters. A persuasive case can be made that their equal protection and due process rights are being infringed. 

It is true that special elections—New York style—are not ideal: party leaders, not voters, nominate the candidates whose names appear on the ballot. Yes, that needs to be changed. In the meantime, however, all voters have a fundamental and equal right to be fully represented in our state capital.

 One final point. Special elections are not held immediately. Voters must wait between 70 and 80 days from the date of a gubernatorial proclamation. So, there is still time to elect twelve new legislators while Albany remains in session, but the clock is ticking.

With this piece, Jerry Goldfeder starts as a regular on-line columnist  for City & State. He practices election and political law at Stroock & Stroock & Lavan LLP in New York City, and teaches Election Law at Fordham Law School and University of Pennsylvania Law School.  He is also a regular columnist for the New York Law Journal ("Government and Election Law") and Law.com (“Law and Politics”).